The burden of proof lies with the party claiming partition to establish the division of properties, and the court may allow additional evidence if vital to decide the case.

JUDGMENT

(Prayer: Appeal Suit filed under Order 41 Rule 1 and Section 96 of the Code of Civil Procedure, to set aside the judgment and decree dated 20.04.2011 passed in O.S.No.44 of 2004 on the file of the Principal District Court, Pudukottai by allowing this first appeal.)

1. This Appeal Suit has been preferred challenging the judgment and decree dated 20.04.2011 passed in O.S.No.44 of 2004 on the file of the Principal District Court, Pudukottai.

2. The appellants are the plaintiffs in O.S.No.44 of 2011, on the file of the learned principal District Court, Pudukottai. The respondents are the defendants in the said suit. The appellants/plaintiffs filed the suit against the respondents/defendants for partition and separate possession of their ½ share in the plaint schedule properties by metes and bounds. After trial, the trial Court dismissed the suit. Challenging the said judgment and decree, the appellants/plaintiffs filed the present appeal before this Court.

3. The averments made in the plaint, in brief, are as follows:-

The suit properties and other properties originally belonged to the first defendant and his brother – Muthaiah Thevar, being Hindu joint family properties. They already partitioned the nanja lands and some of the punja lands among them. But they jointly enjoyed the suit properties. When the Government took the suit village, the suit properties were not issued with patta. It came to know that Muthaiah Thevar and his wife – Mullaiammal approached the Settlement Officer and filed separate petitions in order to avoid any legal impediments because of the law existing at that point of time. The Settlement Officers issued patta to the suit properties. In the suit properties, Muthaiah Thevar and the first defendant were entitled to half share and joint possession over the same. Mullaiammal was not entitled to any share in the suit properties. Since patta was issued, she was not entitled to any right over the suit properties. Patta is not a document of title. Muthaiah Thevar died about 7 months ago. The first defendant is the son of Muthaiah Thevar. The second defendant is the wife of Muthaiah Thevar. The third defendant is the daughter of Muthaiah Thevar. The plaintiffs 4 and 5 are the wife and son of the deceased son of Muthaiah Thevar. They inherited half share of Muthaiah Thevar in the suit properties. The defendants 2 and 3 are the sons of the first defendant. The defendants 4 and 5 are the sons of deceased Thirugnanam, who is son of the first defendant. The sixth defendant is the wife of first defendant. The seventh defendant is the daughter of the first defendant.

(ii) The first defendant and the defendants 2 to 5 managed the family. Mullaiammal died about 10 years ago. The suit properties were in joint possession. Since the defendants 2 to 5 acted against the interest of the plaintiffs, the first plaintiff is not inclined to enjoy the suit properties jointly along with the defendants. Hence, the first plaintiff issued notice for partition, but the defendants protracted the same. Therefore, the first plaintiff issued notice to the defendants 2 to 5 for partition. The defendants 2 to 5 replied with false averments. There was no partition in the year 1960. The patta issued in favour of Mullaiammal did not confer any title over her. There was no partition in the year 1986. The defendants 2 to 5 tried to defeat the share of the plaintiffs. Hence, the plaintiffs filed the suit for partition.

4. The averments made in the written statement filed by the first defendant, which was adopted by the defendants 1 to 7, reads as follows:-

(i) The first defendant denied that the suit properties and other properties originally belonged to the first defendant – Samivel Thevar and his brother – late Muthaiah Thevar as Hindu joint family properties and they partitioned some of the properties between them and the suit properties are not partitioned and they enjoyed the same as joint family properties. The first de